Higgins v. Environmental Design Studio CA2/7
B341317
| Cal. Ct. App. | Nov 17, 2025|
Check TreatmentFiled 11/17/25 Higgins v. Environmental Design Studio CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
KIMBERLY K. HIGGINS, B341317
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV18156)
v.
ENVIRONMENTAL DESIGN
STUDIO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ian C. Fusselman, Judge. Affirmed.
McNicholas & McNicholas and John P. McNicholas for
Plaintiff and Appellant.
Quintairos, Prieto, Wood & Boyer and Justin A. Bubion for
Defendant and Respondent.
_______________________
Kimberly K. Higgins appeals from the judgment entered
after the trial court granted the summary judgment motion filed
by Environmental Design Studio in this personal injury case.
Higgins sued Environmental Design, a landscaping service
contracted by her employer (Restoration Hardware), for
negligence in connection with injuries she sustained after a
ladder fell on her in a storage room at her workplace. The trial
court (a different judge) previously granted a summary judgment
motion filed by Environmental Design, but we reversed on the
basis that Environmental Design did not meet its initial burden
to present evidence that Higgins could not establish one or more
elements of the action. (Higgins v. Envtl. Design Studio (July 17,
2023, No. B322269) [nonpub. opn.].) We explained with respect
to the declaration Environmental Design submitted from its
president, that he “did not explain how he knew any of the facts
asserted in the declaration. He did not state, for example, that
he was ever on site at Restoration Hardware, that he personally
performed the gardening services at issue or directly supervised
others who did, or that he otherwise had reason to believe the
facts were true.”
In its second summary judgment motion, Environmental
Design submitted a new declaration from the maintenance
supervisor who oversaw Environmental Design’s work at the
Restoration Hardware store. In granting summary judgment,
the trial court found Environmental Design met its initial burden
on summary judgment and Higgins did not create a triable issue
of fact because the evidence Higgins presented—that an
Environmental Design employee used the same ladder on
Restoration Hardware’s rooftop garden two months earlier—did
2
not support a reasonable inference that an Environmental Design
employee negligently placed the ladder in the storage room.
Higgins contends the trial court erred in overruling her
objections to the declaration of the maintenance supervisor and
she presented circumstantial evidence an Environmental Design
employee placed the ladder in the storage room. This time, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
On May 12, 2020 Higgins filed this action against “Doe
Gardeners” and individual unnamed gardener defendants,
asserting a single cause of action for negligence. Higgins alleged
that on June 17, 2018, while she was performing her customary
duties as an associate designer at a Restoration Hardware store
in West Hollywood (the Store), a 12-foot ladder fell on her,
striking her head and causing her to suffer traumatic brain
damage and other injuries (the incident). Higgins alleged the
ladder was “last used by [defendant gardeners] in the
maintenance of the garden.” On September 1, 2020 Higgins
amended the complaint to name Environmental Design as a
defendant.1
1 On August 21, 2020 Higgins named Environmental
Landscape Development, Inc. as a defendant. Environmental
Landscape Development was dismissed from the action with
prejudice on April 4, 2023, and it is not a party to this appeal.
3
B. Environmental Design’s Motion for Summary Judgment
1. Motion and supporting evidence
On June 6, 2024 Environmental Design filed its motion for
summary judgment. It argued that Higgins could not establish
the duty, breach, and causation elements of a negligence cause of
action because the undisputed evidence established that
Environmental Design employees did not have access to the
storage room where the ladder fell, and there was no evidence its
employees entered or placed the ladder in the storage room. In
support of its motion, Environmental Design submitted excerpts
from Higgins’s deposition and her responses to requests for
admission and interrogatories, as well as declarations from
Environmental Design’s corporate president, Sean Femrite, and
its maintenance supervisor, David Garaffo.
In her deposition, Higgins testified that one morning in
April 2018, about two months before the incident, she saw an
Environmental Design employee2 using a 12-foot aluminum
ladder in the Store’s rooftop garden. The ladder “appeared to be”
Restoration Hardware’s ladder. Higgins was “pretty much one
hundred percent sure” the ladder used on the rooftop in April was
owned by Restoration Hardware and was the same ladder that
fell on her two months later because the Environmental Design
employee left the ladder on the rooftop after he left the premises,
and the ladder was still there at 9:00 a.m. later that morning.
According to Higgins’s deposition testimony, the storage
room where the incident occurred was located on the first floor of
the Store and contained rugs, textile swatches on shelves, and
2 Higgins stated she recognized the Environmental Design
employees because they wore olive uniforms with safari hats.
4
electronic equipment. Higgins never saw any plants in the room.
Entry to the storage room was controlled by a keypad lock. All
Restoration Hardware employees had the access code to enter the
room, but Higgins did not know if the code was given to vendors,
and she did not know if Environmental Design employees had
access to the room at any time before the incident. She had never
seen anyone from Environmental Design in the storage room, nor
was she aware of any previous occasion when an Environmental
Design employee was inside the room. Higgins only saw
Environmental Design employees doing landscape maintenance
in the rooftop garden, and never inside the Store. She did not
recall ever seeing an Environmental Design employee carry a
ladder up or down the stairs or in the elevator. Higgins admitted
she did not know who placed the ladder in the storage room
before the incident.
In response to requests for admission and interrogatories,
Higgins admitted Environmental Design did not own the ladder
involved in the incident and did not own, possess, or control the
Store premises, including the storage room. In response to an
interrogatory asking Higgins to state all facts that supported her
cause of action for negligence, Higgins responded: “Based upon
the facts that are presently known, the ladder in question which
[Environmental Design] employees used on a regular basis to
service the roof garden was replaced in such a manner that it fell
and struck [Higgins].” In response to an interrogatory seeking all
facts supporting her contention that Environmental Design
controlled the premises (defined as where the incident occurred)
at the time of the incident, Higgins responded that
Environmental Design “did not necessarily control the premises
per se, but rather, the ladder in question.”
5
In his declaration, Environmental Design president
Femrite averred he had personal knowledge of the landscaping
services provided by Environmental Design at the Store.3
Restoration Hardware contracted with Environmental Design in
2015 to provide landscape maintenance services. Environmental
Design’s policy and procedure was to bring its own ladders to the
site; not to store any equipment or ladders in the storage room or
elsewhere at the Store; and not to use any ladders that might be
available at the Store. Femrite had visited the Store on multiple
occasions and observed the storage room door had a password-
protected keypad that restricted access to the room;
Environmental Design did not have the password or keys to enter
the storage room.
In his declaration, Environmental Design maintenance
supervisor Garaffo averred that from 2017 to the date of his
declaration (May 2024) he was the exclusive maintenance
supervisor for landscaping services at the Store. As such, he was
“personally involved with,” “personally present,” and had
“personally overseen” all services provided by Environmental
Design at the Store. Environmental Design provided landscape
maintenance services between 7:00 a.m. and 10:00 a.m. on
weekdays. It did not perform services on weekends.4
3 We summarize only those portions of the Femrite
declaration with respect to which the trial court did not sustain
an evidentiary objection.
4 We take judicial notice that June 17, 2018, the date of the
incident, was a Sunday. (Evid. Code § 452, subd. (h) [courts may
take judicial notice of “[f]acts and propositions that are not
reasonably subject to dispute and are capable of immediate and
6
In paragraphs 5 and 7 Garaffo made statements about the
work of Environmental Design employees at the Store based on
his “personal knowledge and personal observations on behalf of
[him]self and the [Environmental Design] employees that worked
with [him] at the Store.” Garaffo stated in paragraph 5 that at
all times in the 90 days preceding the incident, Environmental
Design employees brought their own ladders to the Store; they
kept their ladders in their trucks; they did not store any ladders
at the Store, including in the storage room; they did not use any
ladders provided by Restoration Hardware or located at the
Store; and they only used six-foot ladders. In paragraph 7,
Garaffo stated Environmental Design employees did not have the
password for the storage room or otherwise have access to the
storage room; they did not provide any services in the storage
room; and they did not place or store any equipment, including
ladders, in the storage room.
In paragraphs 8 through 11, Garaffo stated Environmental
Design employees did not know when, how, by whom, and in
what manner the 12-foot ladder that struck Higgins came to be
placed in the storage room at the time of the incident. In each of
these four paragraphs, Garaffo stated, “I confirmed this
information by speaking to [Femrite] and the employees that
worked with me during the [90-day] period before the [i]ncident.”
Higgins objected to paragraphs 5 and 7 of Garaffo’s
declaration on the grounds that his testimony lacked foundation
based on personal knowledge and was based on hearsay. In
ruling on the summary judgment motion, the trial court
accurate determination by resort to sources of reasonably
indisputable accuracy”].)
7
overruled Higgins’s objection to paragraph 5, explaining that
Garaffo “establishe[d] the foundation for his personal knowledge.”
The court sustained Higgins’s objection to paragraph 7 to the
extent Garaffo relied “on hearsay statements by [Environmental
Design] employees” but clarified “there is adequate foundation
establishing his personal knowledge of these facts to the extent
he avers he was present when work was being done.”5
2. Higgins’s opposition and additional evidence
In opposition to the summary judgment motion, Higgins
argued the fact she had seen Environmental Design employees
using the ladder that injured her two months before the incident
was sufficient circumstantial evidence to support a finding that
Environmental Design was responsible for replacing the ladder in
the storage room in a negligent manner before it fell on her. She
explained, “[j]ust because [Environmental Design] claims that it
does not know who or when or how the ladder found its way from
the . . . roof garden in April 2018 back to the storage room in time
for plaintiff’s injury on June 17, 2018 is not dispositive of this
motion. . . . It is a question of fact. . . . A reasonable and logical
inference which could be drawn by a jury is that an
[Environmental Design] employee returned the ladder to the
storage room from which he removed it in the first place.”
5 The trial court stated in its order that it was sustaining in
part Higgins’s objection to paragraph 9, but it appears the court
was responding to Higgins’s objection to the statements in
paragraph 7, which was misidentified in Higgins’s objection as
paragraph 9. We address below Higgins’s objections to
paragraphs 5 and 7.
8
In a supporting declaration, Higgins averred she saw
Environmental Design employees “use the [Restoration
Hardware] ladder on the roof in April 2018.” On June 17, 2018,
as she was walking through the storage room, “a 12-foot ladder
fell from where it had been stored on the wall in the storage
room” and struck her head. During her seven years working at
the Store, she “saw vendor’s [sic] employees, including employees
of [Environmental Design] come and go at [the Store].” During
this period, she also saw that “[Restoration Hardware] left the
door to the storage room ajar as an accommodation for
[Environmental Design’s] employees (and others) to have easy
access to the storage room,” and “[Environmental Design’s]
employees (and others) did not need a key or password to enter
the storage room.”6
Higgins also submitted the full transcripts of the
depositions of Femrite and Garaffo. During his three-minute
deposition, Femrite was asked why he was in the storage room
during the 90 days before the incident. Femrite responded that
he was not in the storage room. Garaffo was asked the same
question during his four-minute deposition, and he responded, “I
was never in the storage room or near it. I have no recollection or
knowledge of that storage room.” The only other questions
Garaffo was asked related to his tenure and positions at
Environmental Design and whether he knew two specific
6 Environmental Design objected to Higgins’s declaration on
the basis that her statements were self-serving and directly
contradicted her deposition testimony that she did not know
whether Environmental Design had access to the storage room.
The trial court overruled the objection. We do not reach
Environmental Design’s contention on appeal that this was error.
9
individuals (he did not). In her opposition, Higgins argued
Garaffo’s admission that he was never in or near the storage
room contradicted the statement in his declaration that he had
personal knowledge that the storage room was locked with a
keypad.7
C. The Trial Court’s Ruling and Entry of Judgment
Higgins’s attorney argued at the August 30, 2024 hearing
on the summary judgment motion, as he does on appeal, that
Garaffo could not have had personal knowledge of the facts in his
declaration because he admitted at his deposition that “he was
never, ever at the premises.” The trial court observed in response
that the fact Garaffo was not in the storage room did not mean he
was not at the Store. The court also rejected the argument by
Higgins’s attorney that Environmental Design could not meet its
initial burden on summary judgment without presenting
testimony of the Environmental Design employees who worked at
the Store on the Friday before the incident. The court noted that
Higgins could have deposed those employees to meet its burden.
The trial court adopted its tentative ruling and granted
Environmental Design’s motion for summary judgment. The
court found that Environmental Design made a prima facie
7 In its reply, Environmental Design argued that Higgins’s
testimony that Environmental Design employees used the
Restoration Hardware ladder two months before the incident did
not support an inference Environmental Design negligently
placed the ladder in the storage room preceding the incident.
Environmental Design also argued the objections to the Femrite
and Garaffo declarations lacked merit, and there was no
inconsistency between their declarations and their admissions
that they had never been inside the storage room.
10
showing there was no triable issue of fact as to the negligence
elements of duty, breach, and causation: “[Environmental
Design] provide[d] evidence that it provided landscape services to
the [S]tore but never owned, operated, possessed or controlled the
storage room where the incident occurred and did not place or
store any tools, equipment or ladders inside the storage room.”
Regarding causation, the trial court considered whether
Higgins raised a triable issue that Environmental Design
employees had placed the ladder in the storage room before it fell
on Higgins. The court found that Higgins’s opposition relied on
the fact she saw Environmental Design employees using the
same ladder two months before the incident and that the storage
room door was not always kept locked, but she did not adduce
any evidence disputing Environmental Design’s evidence that it
did not control the storage room or place the ladder in the room.
The court concluded, “At best, [Higgins’s] evidence supports
speculation as to whether [Environmental Design] negligently
placed the ladder in the storage closet. This speculation, while
certainly within the realm of possibility, does not amount to a
reasonable inference. As such, it also fails to raise a triable issue
of fact.”
On September 24, 2024 the trial court entered judgment in
favor of Environmental Design. Higgins timely appealed.
DISCUSSION
A. Standard of Review
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
11
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Gordon v. Continental Casualty Co. (2024)107 Cal.App.5th 89
, 99.) “‘“‘“We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.”’ [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”’” (Hampton v. County of San Diego (2015)62 Cal.4th 340, 347
; accord, Gordon, at p. 99; Camden Systems, LLC v. 409 North Camden, LLC (2024)103 Cal.App.5th 1068
, 1077-1078.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 853; accord, Gordon v. Continental Casualty Co., supra, 107 Cal.App.5th at p. 99.) The defendant “may satisfy this initial burden of production by presenting evidence that conclusively negates an element of the plaintiff’s cause of action or by relying on plaintiff’s factually devoid discovery responses to show that the plaintiff does not possess, and cannot reasonably obtain, evidence to establish that element.” (Schmidt v. Citi- bank, N.A. (2018)28 Cal.App.5th 1109, 1119
; accord Aguilar, at
pp. 854-855 & fn. 22.) If the defendant satisfies this initial
burden, the burden shifts to the plaintiff to present evidence
demonstrating there is a triable issue of material fact. (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Gordon, at pp. 99-
100.)
12
“‘“In performing an independent review of the granting of
summary judgment, we conduct the same procedure employed by
the trial court.”’” (Camden Systems, LLC v. 409 North Camden,
LLC, supra, 103 Cal.App.5th at p. 1078.) “First, we identify the
causes of action framed by the pleadings. Second, we determine
whether the moving party has satisfied its burden of showing the
causes of action have no merit because one or more elements
cannot be established, or that there is a complete defense to that
cause of action. Third, if the moving party has made a prima
facie showing that it is entitled to judgment as a matter of law,
the burden of production shifts and we review whether the party
opposing summary judgment has provided evidence of a triable
issue of material fact as to the cause of action or a defense.”
(Berlanga v. University of San Francisco (2024) 100 Cal.App.5th
75, 81; accord, Camden, at p. 1078.) “‘A party opposing summary judgment may not “rely upon the allegations or denials of its pleadings” but must set forth “specific facts” beyond the pleadings to show the existence of a triable issue of material fact.’” (Berlanga, at pp. 81-82.) Nor can a party “‘“‘“‘avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.’”’”’” (Restivo v. City of Petaluma (2025)111 Cal.App.5th 267
, 279; accord, Menges v. Department of Transportation (2020)59 Cal.App.5th 13
, 23.)
B. The Trial Court Did Not Err in Overruling Higgins’s
Objections to the Garaffo Declaration Other than as to His
Statements About the Storage Room
As a threshold matter, Higgins contends the trial court
erred in failing to sustain all of her objections to the Garaffo
13
declaration, because Garaffo did not have personal knowledge of
the facts he stated.8 “‘“Personal knowledge” means a present
recollection of an impression derived from the exercise of the
witness’ own senses.’” (People v. Valencia (2021) 11 Cal.5th 818,
831, fn. 12; accord, Chambers v. Crown Asset Management, LLC (2021)71 Cal.App.5th 583
, 601.) “Unless a witness is testifying
as an expert, ‘the testimony of a witness concerning a particular
matter is inadmissible unless he has personal knowledge of the
matter.’” (Chambers, at p. 601, quoting Evid. Code, § 702,
subd. (a).) “A witness’[s] personal knowledge of a matter may be
shown by any otherwise admissible evidence, including his own
testimony.” (Evid. Code, § 702, subd. (b).)
Garaffo averred (without objection) that as Environmental
Design’s exclusive maintenance supervisor at the Store since
2017, he was “personally involved with” and “personally present
and [had] personally overseen the services provided by
[Environmental Design] employees at the Store.” With respect to
paragraphs 5 and 7, Garaffo also declared, “On all occasions
when services were performed by [Environmental Design]
8 The Supreme Court has not decided “whether a trial court’s
rulings on evidentiary objections based on papers alone in
summary judgment proceedings are reviewed for abuse of
discretion or reviewed de novo.” (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 535; accord, Alexander v. Scripps Memorial Hospital La Jolla (2018)23 Cal.App.5th 206, 226
[in Reid “the
California Supreme Court expressly declined to reach the issue of
the appropriate standard of review for reviewing a trial court’s
rulings on evidentiary objections made in connection with a
summary judgment motion”].) Our conclusions with respect to
the challenged portions of Garaffo’s declaration are the same
under either standard.
14
employees at the store during the [90-day] period prior to the
incident . . ., I can confirm the following based on my personal
knowledge and personal observations on behalf of myself and the
[Environmental Design] employees that worked with me at the
Store.”
To the extent Garaffo’s statements were based on
observations by other Environmental Design employees,
Higgins’s objections are well taken. However, most of Garaffo’s
statements were based on his personal observations given that he
was “personally present and observed the work being performed
by [Environmental Design] employees” “[o]n all occasions” during
the 90-day period preceding the incident. For example, with
respect to paragraph 5, Garaffo had personal knowledge to make
the following statements challenged by Higgins: Environmental
Design employees did not use any ladders provided by
Restoration Hardware; they brought their own ladders to the
Store; they stored their ladders on Environmental Design trucks;
they used only six-foot ladders to perform services at Restoration
Hardware; and they did not need 12-foot ladders to perform work
at Restoration Hardware. Because he was continually present
and supervised the other employees at all times, Garaffo would
have seen if one of his workers used a 12-foot Restoration
Hardware ladder (visually distinguishable from Environmental
Design’s six-foot ladders) or carried a 12-foot ladder off the
rooftop and down the stairs or into the elevator. His testimony
that this never occurred was “‘an impression derived from the
exercise of [his] own senses.’” (People v. Valencia, supra,
11 Cal.5th at p. 831, fn. 12.)
Moreover, Higgins did not present any evidence
contradicting Garaffo’s foundational testimony that during the
15
90-day period preceding the incident he personally observed the
Environmental Design employees. Higgins deposed Garaffo after
Environmental Design filed for summary judgment, yet Higgins’s
attorney never asked Garaffo during his four-minute deposition
whether there were lapses or limitations in Garaffo’s ability to
observe his coworkers.
Higgins also challenged Garaffo’s statements in
paragraph 7 that Environmental Design workers did not place or
store any tools, equipment, or 12-foot ladders (or any ladders)
inside the storage room; they did not have access to the storage
room; they did not have the password or keys to the storeroom,
which was password protected; and because they never stored the
12-foot ladder that was involved in the incident, they could not
have been the last ones to have placed the ladder in the storage
room before the incident. We agree with Higgins that the trial
court erred in overruling her objections to these statements
because Garaffo acknowledged in his deposition that he was
“never in the storage room or near it,” and he had “no recollection
or knowledge of that storage room.”9 Thus, he would not have
had personal knowledge whether an Environmental Design
employee had ever entered the storage room or stored a ladder or
other equipment in the storage room.
Higgins also argues in her opening brief that all of
Garaffo’s challenged statements should have been excluded
because “Garaffo testified by declaration . . . that he had been at
the premises 90 days before [the incident]. He later testified in
9 Garaffo similarly stated in paragraph 5(b) of his
declaration that Environmental Design employees did not store
any ladders in the storage room or Store. We agree the trial
court should have sustained an objection to this statement.
16
his deposition that he had never been there.” (Italics added.)
Higgins’s argument mischaracterizes the record, conflating the
Store and the storage room. As discussed, Garaffo testified that
he “was never in the storage room or near it.” Consistent with
this testimony, Garaffo declared he was present at the Store and
rooftop during the 90-day period; he never asserted he was
present near or in the storage room.
Higgins also argues the trial court should not have credited
the Garaffo and Femrite declarations because Environmental
Design did not submit declarations “from one or more of the
workers who were actually at the site of [Higgins’s] injury.”
Higgins asserts (without any citation to the record) that the
Environmental Design workers were present “up to and including
the Friday before the ladder fell on [Higgins] on Sunday,
June [17], 2018.” In support of her argument, Higgins relies on
the CACI No. 203 pattern jury instruction, which states, “You
may consider the ability of each party to provide evidence. If a
party provided weaker evidence when it could have provided
stronger evidence, you may distrust the weaker evidence.” CACI
No. 203 is based on Evidence Code section 412, which provides,
“If weaker and less satisfactory evidence is offered when it was
within the power of the party to produce stronger and more
satisfactory evidence, the evidence offered should be viewed with
distrust.” (See CACI No. 203, Sources and Authority.) This
argument lacks merit.
Higgins does not cite, nor are we not aware of, any
authority that a court, in reviewing a grant of summary
judgment, may disregard evidence presented by the moving party
based on CACI No. 203—a jury trial instruction—or Evidence
Code section 412. Moreover, CACI No. 203 “should not be given if
17
there is no evidence that the party producing inferior evidence
had the power to produce superior evidence.” (CACI No. 203,
Directions for Use.) Likewise, Evidence Code section 412 does
not apply “merely where a party has the ability or opportunity to
create evidence. The evidence must itself already exist.” (Orange
County Water Dist. v. Alcoa Global Fasteners, Inc. (2017)
12 Cal.App.5th 252, 363 [trial court erred in in applying Evid.
Code, § 412 to discredit plaintiff’s testimony during bench trial
that defendant polluted water based on plaintiff’s failure to
produce written water studies, where studies had not been
conducted].)
There is no evidence Environmental Design could have
produced evidence superior to the Garaffo declaration. As
Garaffo averred, he personally provided landscaping services at
the store and, as the exclusive management supervisor, he
supervised the other employees and their work; there is no
indication in the record that any other employee was more
knowledgeable. There is also no evidence to support Higgins’s
assertion that Environmental Design workers were present on
the Friday before the incident, and, if they were, that Garaffo
was not. Nor did Higgins offer any evidence about other workers
despite her opportunity to inquire of Femrite and Garaffo about
other workers who were at the Store on the Friday before the
date of the incident, and to depose those individuals.
Finally, to the extent Higgins contends the trial court erred
in granting summary judgment because Environmental Design
did not submit a declaration on behalf of every employee who
worked at the store to prove the negative (that they did not place
the Restoration Hardware ladder in the storage room before the
incident), Higgins misapprehends Environmental Design’s
18
burden on summary judgment: “[A]ll that the defendant need do
is to show that the plaintiff cannot establish at least one element
of the cause of action . . . the defendant need not himself
conclusively negate any such element.” (Aguilar v. Atlantic
Richfield Co., supra, 25 Cal.4th at pp. 853-854.)
C. The Trial Court Did Not Err in Granting Environmental
Design’s Summary Judgment Motion
“The four elements of a negligence claim are well
established: (1) duty; (2) breach; (3) proximate causation; and
(4) injury.” (The Law Firm of Fox & Fox v. Chase Bank, N.A.
(2023) 95 Cal.App.5th 182, 192; accord, Brown v. USA Taekwondo (2021)11 Cal.5th 204
, 213 [“To establish a cause of
action for negligence, the plaintiff must show that the ‘defendant
had a duty to use due care, that he breached that duty, and that
the breach was the proximate or legal cause of the resulting
injury.’”].) To recover in this action, Higgins had to prove
Environmental Design employees negligently placed the ladder in
the storage room, which caused it to fall on Higgins.10 We agree
with the trial court that Higgins failed to create a triable issue of
fact.
We first consider the evidence in Environmental Design’s
moving papers. (Code Civ. Proc., § 437c, subd. (p)(2).) Garaffo
averred that Environmental Design provided landscape
maintenance services only on the roof of the Store, and in the 90
days preceding the incident, Environmental Design employees
10 As stated in her interrogatory responses and admissions,
Higgins does not contend Environmental Design owned or
controlled the storage room, and she did not pursue theories of
premises liability or res ipsa loquitor.
19
used only their own six-foot ladders and never used Restoration
Hardware’s 12-foot ladders. Higgins admitted in her deposition
she saw an Environmental Design employee using a Restoration
Hardware ladder on only the single occasion in April 2018 when
she saw the employee using the ladder on the roof, and the ladder
was still on the roof after the Environmental Design employee
left. Higgins also admitted she had only seen Environmental
Design employees in the rooftop garden or traveling on the stairs;
she never saw an Environmental Design employee in the storage
room. Finally, Higgins admitted she did not know who placed the
ladder in the storage room before the incident, and she did not
know if Environmental Design had access to the storage room.
With this evidence, Environmental Design met its initial burden
to show that Higgins would not be able to prove that an
Environmental Design employee placed the ladder in the storage
room prior to the incident, negating the elements of breach and
causation.
In her opposition, Higgins failed to present “‘specific facts’”
to rebut Environmental Design’s showing and create a triable
issue of material fact. (See Berlanga v. University of San
Francisco, supra, 100 Cal.App.5th at pp. 81-82.) She averred in
her declaration she saw an Environmental Design employee
using the Restoration Hardware ladder on the roof in April 2018,
and two months later, that ladder fell from the wall in the
storage room. Although this controverts Garaffo’s testimony that
Environmental Design employees never used a Restoration
Hardware ladder, it is not evidence that Environmental Design
placed the ladder in the storage room before the incident.
Higgins also averred that Restoration Hardware left the door to
the storage room open “as an accommodation for [Environmental
20
Design] employees and others to have easy access to the storage
room.” But the fact that Environmental Design employees could
have entered the storage room without a password is not
evidence they actually entered the room, let alone that they did
so in the days leading up to the incident.
Higgins argues she produced “circumstantial evidence”
Environmental Design employees placed the ladder in the storage
room. Circumstantial evidence is indirect evidence from which a
logical and reasonable factual inference may be made. (CACI
No. 202; see Evid. Code, § 600, subd. (b) [“An inference is a
deduction of fact that may logically and reasonably be drawn
from another fact or group of facts found or otherwise established
in the action.”].)11
We agree with the trial court that Higgins’s proffered
indirect evidence—Environmental Design’s use of the Restoration
Hardware ladder on the Store rooftop in April 2018 and
Restoration Hardware’s practice of leaving the storage room door
ajar—was insufficient to support a logical and reasonable
inference that Environmental Design employees placed the
ladder in the storage room two months later. Further, several of
Higgins’s admissions undermine such an inference. For example,
Higgins only once saw Environmental Design employees using
11 Higgins argues that the reasonableness of an inference is a
factual question that the jury should decide, citing Regents of
University of California v. Superior Court, supra,4 Cal.5th 607
.
However, the court in Regents considered only whether the
university owed a duty of care to protect students from
reasonably foreseeable violence (see id., at p. 634); it did not hold
the “reasonableness” of an inference from circumstantial evidence
cannot be decided on summary judgment.
21
the ladder (in April), and the employees did not remove the
ladder from the roof when they left the Store; Higgins never saw
Environmental Design employees inside the Store (other than on
the stairs); Higgins never saw the Environmental Design
employees in the storage room; the storage room was on the first
floor and was used to store swatches, rugs, and computers (not
gardening supplies); and Higgins did not know whether any
Environmental Design employee ever had entered the storage
room at any time before the incident. Higgins’s proposition that
an Environmental Design employee placed the ladder in the
storage room is based on pure conjecture and speculation, not
circumstantial evidence, and it does not create a triable issue of
fact. (Restivo v. City of Petaluma, supra, 111 Cal.App.5th at
p. 279; accord, Advent, Inc. v. National Union Fire Ins. Co. of
Pittsburgh, PA (2016) 6 Cal.App.5th 443, 459 (Advent) [“‘When
opposition to a motion for summary judgment is based on
inferences, those inferences must be reasonably deducible from
the evidence, and not such as are derived from speculation,
conjecture, imagination, or guesswork.’”].)
Advent supra,6 Cal.App.5th 443
, relied on by the trial
court, is instructive. Advent involved a coverage dispute among
insurers after a construction worker for a subcontractor, John
Kielty, sued the general contractor for injuries he sustained in
falling down an unguarded stairway shaft inside an unfinished
building. (Id. at p. 446.) The insurer for the subcontractor moved
for summary judgment on the coverage claim by the general
contractor’s insurer, arguing the subcontractor did not cause
Kielty’s injury. (Id. at p. 459.) It was undisputed that the
subcontractor was working outside of the building in which
Kielty fell; a foreman for the subcontractor directed Kielty to
22
retrieve plywood; the path to the plywood was entirely outside
the building; and Kielty was seen going inside the building,
where he fell down the stairway. (Id. at pp. 459-460.) Kielty did
not remember how he fell, and there was no evidence of the
circumstances of the fall. (Ibid.) In its opposition, the general
contractor’s insurer argued Kielty’s injuries were “potentially
caused by [the subcontractor]” because at all relevant times
Kielty was acting on the subcontractor’s behalf. (Id. at p. 459.)
The Court of Appeal affirmed the order granting summary
judgment, concluding the subcontractor’s insurer met its initial
burden, and the general contractor’s insurer failed to create a
triable issue of fact because there was no evidence the
subcontractor’s foreman directed or caused Kielty to enter the
building. (Id. at p. 460.) The court concluded, “[the general
contractor’s insurer] seems to claim that based on the undisputed
circumstances of Kielty’s fall—the fact that he was at the jobsite
and was directed by the [subcontractor’s] foreman to retrieve
plywood when he fell—it can be reasonably inferred that [the
subcontractor] was at fault. We disagree with [the general
contractor’s insurer’s] assessment, which relies purely on
speculation, not reasonable inferences.” (Ibid.)
The speculative leap in this case is even greater than in
Advent. In Advent, the undisputed facts showed the foreman
supervised Kielty and directed his actions on the day of the
accident, although there was no evidence he directed Kielty into
the building. Here, there is no evidence Environmental Design
controlled the placement of Restoration Hardware’s 12-foot
ladder on the day of the incident, and accepting Higgins’s facts as
true, two months passed from the day an Environmental Design
employee used the ladder on the roof and the day the ladder fell
23
from the storage room wall. And like the Advent plaintiff,
Higgins did not know the circumstances under which the ladder
came to be inside the storage room, and she adduced no facts
bridging the causal chasm between Environmental Design’s use
of the ladder on the roof and her injury.12
12 Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, relied on
by Higgins, is distinguishable. In Donchin, we reversed the grant
of summary judgment in favor of the landlord of a building in
which a tenant owned two rottweilers who attacked the plaintiff
where the plaintiff had alleged the landlord knew the dogs were
dangerous. (Id. at p. 1835.) In his moving papers, the landlord
declared he did not know the dogs were dangerous, although he
admitted he had observed the dogs on multiple occasions (despite
his earlier denial he knew the tenant had dogs). (Id. at p. 1844.)
We concluded the plaintiff created a triable issue of fact by
submitting declarations from witnesses who attested the dogs
frequently displayed extreme ferociousness when approached at
the landlord’s building, and an animal behaviorist who declared
that rottweilers display “‘territorial aggressive behavior towards
strangers’” and opined it was likely the landlord witnessed such
behavior in visiting the building and had actual knowledge of the
dogs’ dangerousness. (Ibid.) We explained the plaintiff’s
affirmative evidence supported a reasonable inference that the
landlord must have known about the dogs’ vicious nature, and
the landlord’s prior false denial of knowledge the dogs existed
further cast doubt on the landlord’s credibility in denying he
knew the dogs had a vicious propensity. (Id. at p. 1845.) Higgins
made no comparable showing.
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DISPOSITION
The judgment is affirmed. Environmental Design is to
recover its costs on appeal.
FEUER, J.
We concur:
SEGAL, Acting P. J.
STONE, J.
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